Eidetics of Law-Making Acts: Parts, Wholes and Degrees of Existence (original) (raw)
Related papers
Phenomenology and Mind, 2017
In my paper I introduce the phenomenological concept of “eidetics” and its application to law. I show that, according to this approach grounded in the works of Reinach (1913) and Stein (1925), the problem of the existence and validity of the law can be fruitfully analysed in terms of parts-wholes which constitute law-making acts as wholes, both as performed and fulfilled acts. I argue that the parts of law-making acts can be subject to varying degrees of constraint – necessary, possible or contingent parts – and that it is the possible part of law-making acts that makes the difference between the existence of law-making acts and their validity: between their mere existence as performed acts, and their full existence as fulfilled and valid acts. I show this in focusing on Stein’s suggestion of filling the inter-personal gap between legislator and citizens in legal provisions by introducing “integrative acts”, which facilitate the uptake and, consequently, the enforcement of legal provisions by citizens. I suggest that Stein’s work on the integrative acts of legal provisions is grounded in the eidetic claim that essential parts of a whole also include possible – and not only necessary – parts, and that these are essential relations of tendency: legal provisions tend essentially to be fulfilled and their existence acquires a full sense only when they are enforced. Finally, I deal with eidetics and the issue of degrees and quality of existence in social ontology. Eidetics, law-making acts, parts and wholes, degrees of constraint, quality of existence
LAW AND PHILOSOPHY: Selected Papers in Legal Theory
2014
Foreword [1994] 1–4 LAW AS PRACTICE QUELQUES QUESTIONS MÉTHODOLOGIQUES DE LA FORMATION DES CONCEPTS EN SCIENCES JURIDIQUES [1970] 7–33: 1. Introduction 7 / 2. La particularité de l’objet des sciences juridiques 8 / 3. La particularité de la méthodologie des sciences juridiques 10 / 4. La particularité de la formation des concepts en sciences juridiques: Quelques problèmes 15 [4.1. Le concept du droit 16 / 4.2. Le concept dogmatique du contenu du droit 21 / 4.3. Le concept de la normativité juridique 23 / 4.4. Le concept des lacunes en droit 24] / 5. La particularité de la formation des concepts en sciencesjuridiques: Quelques conclusions 26 / 6. La formation des concepts en sciences juridiques et la réalité: Conclusion finale 29 / 7. Annexe: Des bases d’une classification possible des définitions en sciences juridiques 31 // GELTUNG DES RECHTS – WIRKSAMKEIT DES RECHTS [1978] 35–42 // MACROSOCIOLOGICAL THEORIES OF LAW: A SURVEY AND APPRAISAL [1983] 43–76: I. Issues of the Macrosociological Theories of Law 46 / II. The Role of the Macrosociological Theories in the Social Science Foundation of Legal Thinking 63 // REFLECTIONS ON LAW AND ITS INNER MORALITY [1984] 77–89: 1. Law and Morals As Two Systems of Norms, and the Inner Morality of Law 77 / 2. Law As A Value Bearer and As A Mere External Indicator 78 / 3. The Inner and External Moral Credit of Legislator 83 / 4. The Inner Morality of Law 86 // THE LAW AND ITS LIMITS [1985] 91–96 LAW AS TECHNIQUE DOMAINE »EXTERNE« ET DOMAINE »INTERNE« EN DROIT [1983] 99–117: 1. Le »juridique« et le »non-juridique« 99 / 2. Domaine »externe« et domaine »interne« en tant que groupes de phénomènes 104 / 3. Domaine »externe« et domaine »interne« en tant que points de références 112 / 4. Conclusion 116 // DIE MINISTERIELLE BEGRÜNDUNG IN RECHTSPHILOSOPHISCHER SICHT [1977] 119–139: I. Die prinzipiellen und geschichtlichen Grundlagen der Herausforderung der ministeriellen Begründungen 120 / II. Die möglichen und erwünschten Funktionen der ministeriellen Begründung im sozialistischen Rechts 128 / III. Die ministerielle Begründung und ihr Wert in der Auslegung derRechtsnormen 132 // THE PREAMBLE: A QUESTION OF JURISPRUDENCE [1970] 141–167: I. The Notion of the Preamble 142 / II. Content and Functions of the Preambles 146 / III. Normativity of the Preamble Content 150 / IV. The Problem of the Justifiability of Preamble-drafting in the Light of Socialist Legal Policy 161 // PRESUMPTION AND FICTION: MEANS OF LEGAL TECHNIQUE [1988] 169–185: I. Presumption 169 [1. In the Judicial Process of Establishing the Facts: praesumptio homini vel facti 170 / 2. In the Normative Definition of the Facts: praesumptio juris tantum 170 / 3. In the Normative Definition of the Facts: praesumptio juris et de jure 171 / 4. In a Possible Theoretical Reconstruction 171] On »Presumption« 172 [1. Function 172 / 2. Presumption and Fiction 173 / 3. Irrelevancy of Epistemological Foundation 173 / 4. The Technique of Presumption 174] II. Fiction 175 [1. In the Linguistic Formation of Legal Norms 175 / 2. In the Judicial Application of Legal Norms 175 / 3. In the Doctrinal Processing of Legal Norms 176 / 4. In the Theoretical Reconstruction of Legal Norms 176 / 5. Approaches to and Understandings of Fiction 177] On »Fiction« 178 [1. History and Understandings 178 / 2. Classification 180 / 3. Law as Fiction 181 / 4. Presumption and Fiction 182] // LEGAL TECHNIQUE [1988] 187–198: I. Legal Technique 187 [1. In the Large Sense 1987/ 2. In Legal Practice 189 / 3. In Legal Science 189 / 4. As a Special Technique 190] II. On Legal Technique [1. Definition and Function 190 / 2. Legal Technique and Legal Cultures 192 / 3. Postulates of Legal Technique in the Cultures of Modem Formal Law 195 {a) The Principle of Consequentiality 195 / b) The Principle of Coherency 195 / c) The Principle of Conceptual Economy 196 / d) The Principle of Non-redundancy 196}] LAW AS LOGIC MODERNE STAATLICHKEIT UND MODERNES FORMALES RECHT [1982] 201–207: 1. Die Klassifizierung als logisches und als gesellschaftswissenschaftliches Verfahren 202 / 2. Typologie der staatlichen und rechtlichen Erscheinungen 202 / 3. Der moderne Staat und das moderne formale Recht: Frage der Zusammenhänge und Entwicklungsalternativen 204 // HETEROGENEITY AND VALIDITY OF LAW: OUTLINES OF AN ONTOLOGICAL RECONSTRUCTION [1986] 209–218 // LEIBNIZ UND DIE FRAGE DER RECHTLICHEN SYSTEMBILDUNG [1973] 219–232: 1. Aktualität von Leibniz 219 / 2. Der Gedanke der universalen mathematischen Methode 221 / 3. Die logischen Konzeption der Rechtswissenschaft 224 / 4. Die geometrische Vision der rechtlichen Systembildung 227 / 5. Das Scheitern der Leibnizschen Idee und seine Lehre 230 // LAW AND ITS APPROACH AS A SYSTEM [1975] 233–255: 1. The Logical Structure of Law as a Historical Product 233 / 2. Tendencies of Formal Rationalization in Legal Development 234 / 3. Historical Development of the Approach to Law as a System 239 / 4. Present State of the Attempts at a Logical Reconstruction of Law and Legal Reasoning 243 / 5. Question of the Axiomatic Conception of Law 248 / 6. Heuristic Value of the Approach to Law as a System 250 // LOGIC OF LAW AND JUDICIAL ACTIVITY: A GAP BETWEEN IDEALS, REALITY AND FUTURE PERSPECTIVES [1982] 258–288: 1. Historical Background 259 / 2. Ideals 264 / 3. Reality 270 / 4. Future Perspectives 277 // KELSEN’S PURE THEORY OF LAW – YESTERDAY, TODAY AND TOMORROW [ms] 289–293, THE NATURE OF THE JUDICIAL APPLICATION OF NORMS: SCIENCE- AND LANGUAGE-PHILOSOPHICAL CONSIDERATIONS [ms] 295–314: 1. Presuppositions 295 / 2. The Context of the Application of Norms 300 [2.1 Actualisation in Concrete Meaning 300 / 2.2 Linguistic Undefinedness 304 / 2.3 Lack of Logical Consequence in the Normative Sphere 308] LAW AS EXPERIENCE ON THE SOCIALLY DETERMINED NATURE OF LEGAL REASONING [1971] 317–374: 1. Interrelation of the Creation and Application of Law 317 / 2. The Socially Determined Nature of the Application of Law 332 / 3. The Socially Determined Nature of Legal Reasoning 337 / 4. The Question of Perspectives 363 // TOWARDS THE ONTOLOGICAL FOUNDATION OF LAW: SOME THESES ON THE BASIS OF LUKÁCS’ ONTOLOGY [1983] 375–390, IS LAW A SYSTEM OF ENACTMENTS? [1984] 391–398: 1. Working Models of Law 391 / 2. Senses of ContExtuality in Law 393 / 3. Jurisprudential Approach and Socio-ontological Approach 394 / 4. Conclusions 396 [4.1. Law as Historical Continuum 396 / 4.2.Law as Open System 396 / 4.3. / Law as Complex Phenomenon with Alternative Strategy 396 / 4.4. Law as an Irreversible Process 397 / 4.5. The Genuinely Societal Character of Law 397] // EUROPEAN INTEGRATION AND THE UNIQUENESS OF NATIONAL LEGAL CULTURES [1992] 399–411: 1. The Philosophical Framework 399 / 2. Law as Tradition 403 / 3. European Integration and the Preservation of the Uniqueness of National Legal Orders 407 // INSTITUTIONS AS SYSTEMS: NOTES ON THE CLOSED SETS, OPEN VISTAS OF DEVELOPMENT, AND TRANSCENDENCY OF INSTITUTIONS AND THEIR CONCEPTUAL REPRESENTATIONS [1991] 413–424: I. A Logic of Systems 413 / II. Ideal Types and Historically Concrete Manifestations 416 / III. Ideal Type As A Normative Ideology 418 / IV.Objectivity and Contingency of Systems 420 / V. Limits and Bonds, ConsEquEntiality and Practicability of a System 423 LAW AS HISTORY FROM LEGAL CUSTOMS TO LEGAL FOLKWAYS [1981] 427–436, ANTHROPOLOGICAL JURISPRUDENCE? LEOPOLD POSPÍŠIL AND THE COMPARATIVE STUDY OF LEGAL CULTURES [1985] 437–457: 1. Rule, Fact and Principle in the Concept of Law 438 [a) Abstract rules 439 / b) Abstracts from actual behaviour 439 / c) Principles Upheld by Legal Decisions 440] 2. Attributes of Law 445 [a) Authority 446 / b) Intention of Universal Application 446 / c) Obligatio 447 / d) Sanction 447] 3. Law and its Social Functional Definition 450 [(1) Law is a Global Phenomenon 451 / (2) Law is a Phenomenon Able to Settle Conflicts of Interests 451 / 3) Law is a Phenomenon Prevailing as the Supreme Controlling Factor 452] 4. Conclusion 454 // LAW AS A SOCIAL ISSUE [1985] 459–475: I. The Social Prestige of Law 459 / II. The Social Nature of Law 463 / III. Law and Language in the Service of Social Mediation 466 (1. Passive Mediation and Active Intervention 468 / 2. The Dilemma of the Mediation of Values 472) // LAW AS HISTORY? [1986] 477–484: 1. Understandings of the Term »Law« 477 / 2. Law and History 478 / 3. Law as History 481 // RECHTSKULTUR – DENKKULTUR: EINFÜHRUNG ZUM THEMA [1988] 485–489 Curriculum Vitae 491 / Bibliography 493 // Index 515 / Index of Normative Materials 523 / Index of Names 525
The recognition of new social actors and the checkmate of statutory law
The starting point of the ‘Polos de Cidadania’ Research Program of the University of Minas Gerais, in Brazil, is the lack of effectiveness of fundamental rights on a day-to-day basis. Our paper aims to discuss this reality through the theoretical debate of the exhaustion of the legalist paradigm; the concealment of pluralism inherent to legal order; and the questioning of the functions of statutory law in the legal system. When statutory law was converted into the primary social control in the XIX century a series of presuppositions were constructed. We argue that they can no longer stand because such paradigm ignores the dynamics of the application of statutes and its hermeneutical character and it conceals the political consequences of decision making. We will analyze these two aspects from the stand point of four basic presuppositions that support them: that there is a complete or at least a high standard of transparency between the citizen and the legislator; that the statutes have a message accessible to all; that social relations are standard and, finally, that the State is the only way to the solution of social conflict. Using examples of ground research of the ‘Polos de Cidadania’ team in the periphery of Belo Horizonte, Minas Gerais, in Brazil, our paper exposes an experience used to reformulate the traditional presuppositions of the Theory of Law and advance towards a comprehension of Law that can be called pluralist, or dialogical. Our paper will propose a new role for statutory law in a context of contemporary societies, and a path, or a methodology that makes the transition of paradigm an open, inaugural process. With this paper we expect to contribute to the discussion about new methodology of law, to share experiences from different parts of the world in which the methodology of law has been challenged by situations of rights violations, and to diffuse the results of the research conducted in our university in order to perfection it.
Legisprudence as a New Theory of Legislation
Ratio Juris, 2006
In this paper I will argue that the separation of law and politics that has been predominant in legal thinking until recently. Because of this separation, the creation of law via legislation has not been deemed a proper theme of attention for legal theory. i Legislation belongs to the realm of politics focused on by political scientists of different sorts.
Legislation in Context : Essays in Legisprudence
The essays in this volume set out to provide a rational framework for legislation. Whilst legislation and regulation is the result of a political process, this volume considers whether they can also be the object of theoretical study. It examines the problems that are common to most European legal systems by applying the tools of legal theory to legislative problems ('legisprudence'). While traditional legal theory deals predominantly with the question of the application of law by a judge, legisprudence enlarges the scope of study to include the creation of law by the legislator. The essays published in the volume develop a new range of insights into the relationship between legislative problems and legal theory in a way that will interest legal scholars throughout the world. Specifically the work will attract the attention of those involved with constitutional law, EU law, human rights law and legal theory. Contents: Series preface; Introduction, Luc J. Wintgens and Philippe Thion; Part I Theory of Legislation: Legitimacy and legitimation from the legisprudential perspective, Luc. J. Wintgens; Lawmaking: between discourse and legal text, Wojciech Cyrul; The rule of law as the law of legislation, Tatsuo Inoue. Part II Legislation, Rules and Norms: Legislative techniques, Peter Wahlgren; Questioning alternatives to legal regulation, Philippe Thion; The emergence of new types of norms, Pauline Westerman; A peacekeeping mission as a new category of war? An institutional analysis, Hanneke van Schooten. Part III Legislation and the Disciplines: Grounding behaviour in law and economics, Bruce Anderson and Philip McShane; Legislation and informatics, Marie-Francine Moens; Nulla poena sine lege Parliamentaria? Democratic legitimacy and European penal law, Linda Gröning. About the Editor: Luc J. Wintgens is Director of the Centre for Legislation, Regulation and Legisprudence, and Dean of the Law Faculty at Katholieke Universiteit Brussels, Belgium. Reviews: 'Legisprudence mainly focuses on pragmatic efforts aimed at improving the quality of legislation. The merit of this book is to highlight theoretical aspects and critical reflections. It furthers a deeper understanding of legislation and helps to develop legisprudence as a comprehensive approach to the legislative phenomenon.' Luzius Mader, Swiss Graduate School of Public Administration, Switzerland. 'For too long now, the field of jurisprudence has focused almost exclusively on the judge, inadvertently creating the false impression that processes of interpretation are all that matter in the law. The authors of this volume show how rewarding it is to focus on legislation and on alternative forms of regulation to correct this imbalance; I have found many stimulating thoughts in its pages.' Willem J. Witteveen, Tilburg University
Law and the State: a Philosophical Evaluation
2010
Introduction It is generally assumed that man is a socio-political animal, that man and society are mutually inextricable, and that no one can lead the life of the island (like the lonely Robinson Crusoe the ship-wrecked man trapped on an island). Such a world would simply be boring and meaningless. From the moment necessity endeared man to live beyond subsistence and evolve society, the questions have ever re-echoed: What is law? What is the role of law in the state? What are the rights and obligations of the citizens in the state? These rights and obligations vary from the intellectual, political, economic, judicial, to the freedom of expression, property ownership, equity and justice. However, the obligations and rights of the citizenry are actualized or negated according to the nature of law within a particular state. The state is a personified abstraction. It often signifies the laws of the federation or a republic. It is in this sense that the state is said to have a geographi...
Enactment of Legal Rules as a Link to Philosophy and Politics
Krytyka Prawa, 2020
The choice of the formula of justice is being made by a law enacting body. In a demo cratic state parliament, or a political body is the main source of formulae of justice, out of the nature of things dominated by political discourse. Here we touch the most significant problem of enacting fair and just law: considerations on the topic of justice reveal a connection of the choice of the formula of justice with philosophy. The compromise of philosophy coacting in the twentieth century with totalitarian systems refuted then ultimately a myth about a possibility of direct translation of philosophical categories to political categories. The political practice of a liberal demo cratic state rejects the idea of metaphysics, which would determine the current purposes of the politics. There is a suggestion that democracy faces philosophy in the order of thinking. In spite of such attitude, the author decides to allow for philosophical establishing of the liberaldemocratic state, but also allowing for the simultaneous realizing that it is by itself justified as the most reasonable political practice of the state. The philosophy may justify democracy only accepting in turn itself as a variant of a democratic discourse, although the only one which is able to have some distance to mere assumptions of philosophy, without ceasing in this way it is being a democratic discourse. Such philosophy is actually the hermeneutics of politics.
Legislation and the Political: Towards Critical Legisprudence
Legislation - the social practice of creating abstract legal rules in a (usually) parliamentary process - inherently belongs to the sphere of the political. This is because, as Pashukanis observed, all law is born out of conflict of interests. Legislative rules are aimed at striking a certain balance between such conflicted interests, rendering winners (beneficiaries) and losers (maleficiaries). The actual social effects of legislation are difficult to judge in the abstract, and therefore empirical research is necessary. The methodology proposed in the Polish context by Paweł Chmielnicki is an interesting step in this direction. Unmasking the dimension of the political, i.e. the social antagonisms, in legislation calls for the development of a new branch of critical legal theorycritical legisprudence. In contrast to non-critical legisprudence inaugurated by Luc Wintgens in the 1990s, critical legisprudence rests on the solid pillars of a hermeneutic of suspicion and emancipatory goal which are common to all strands of critical legal theory. In this perspective, any single legislative rule is treated as only the momentary outcome of ongoing social struggles. There is no perfect compromise and a 'harmonious' society, at least within capitalism, is impossible. The practical task of critical legisprudence is, therefore, to become the 'lobbyist of the people', and on the basis of solid empirical researchfor instance, along the lines of analytical realism proposed by Chmielnicki, propose legislative solutions which will reduce oppression and promote emancipation.
A New Interpretivist Conception of the Rule of Law' Problema 10 (2016) 91-109
Ronald Dworkin argues that the content of the law is limited to the set of judicially enforceable rights. For him, legality, the value that law distinctively serves when it goes well, is primarily a virtue of judicial decision-making. The purpose of this article is to criticize Dworkin’s court-centrism on the ground that it delivers an impoverished conception of legality. Legality has a systemic as well as an adjudicative dimension. In its systemic dimension it requires that government as a whole is structured in a way that guarantees the proper exercise of public power. Accordingly, for a legal system to exhibit the value of legality, it is not sufficient that its judges direct the use of state coercion under certain conditions. Additionally the exercise of public power must accord with a scheme of separation of powers that is geared towards justice. Not all the requirements of legality thus understood are judicially enforceable. This expansive conception of legality is underpinned by a theory of political legitimacy that differs from Dworkin’s. Legitimacy is not merely a retail thing. A political community is also legitimate when it has standing guarantees for the proper exercise of power. Separation of powers is crucial among them. http://biblio.juridicas.unam.mx/Revista/FilosofiaDerecho/
The Concept of Law, Sixty Years On
Kritike: An Online Journal of Philosophy, 2021
In 1961, H.L.A. Hart published his seminal work The Concept of Law, introducing what eventually became the most dominant, influential, but controversial, theory of law in the twentieth century. Not only did it revolutionize the way philosophy of law was done at the time, but it continues to raise fresh problems that puzzle even linguistic, moral, and political philosophers to this very day. The objective of this paper is twofold. The first is to survey four philosophical topics that were explored in The Concept of Law and the contemporary debates that have followed in its wake, and the second is to argue that while some of Hart's ideas have successfully withstood the tests of time and later critics, other ideas have not been as successful, but not without illuminating the path that legal philosophers must traverse in the twenty-first century. The paper has been divided into four parts. Part I ("Law and Method") shall explain the importance of the "internal point-of-view" to ongoing debates between descriptive and normative jurisprudence. Part II ("Law and Morality") shall explain how the rule of recognition revived the natural law/legal positivism debate, the result of which gave rise to the inclusive/exclusive legal positivism debate in turn. Part III ("Law and Language") shall discuss how Hart's insight into the "open texture" of language has created new problems about legal interpretation. Part IV ("Law and Obligation") shall discuss Hart's "practice theory of obligation" and how it has led modern writers to justify the duty to obey the law.